COGAN IMPORTS, INC. PLAINTIFF v. SUNIL DHAROD DEFENDANT CIVIL ACTION NO. 3:16-CV-00352-DJH United States District Court, W.D. Kentucky Filed June 11, 2018 Counsel Donald L. Cox, William H. Mooney, Lynch, Cox, Gilman & Goodman, P.S.C., Louisville, KY, for Plaintiff. Cornelius E. Coryell, II, Sean G. Williamson, Wyatt, Tarrant & Combs, LLP, Louisville, KY, for Defendant. Whalin, Dave, United States Magistrate Judge ORDER *1 This matter is again before the Magistrate Judge to address an ongoing discovery dispute of the parties. The dispute finds its origin in an exchange of identical requests for production of documents served pursuant to Rule 34 of the Federal Rules of Civil Procedure in mid-December of 2017. The document requests of each party essentially sought to obtain from the other internal and external communications, purchase/sales agreements, and insurance declaration pages that related to negotiations for the purchase or the sale of any exotic/vintage automobiles by the responding party for the past 20 years. After Defendant challenged the relevancy and the reasonableness of such requests, the parties contacted the Magistrate Judge in an effort to informally resolve their dispute. Each side provided the Court with an informal position paper on the nature of its discovery-related concerns. The Magistrate Judge conducted a telephonic discovery conference with counsel on Tuesday, February 13, 2018. That conference resulted in the following Order of February 13, which provides in material part that: The current requests for production of documents exchanged by the parties on December 18-19, 2017 are modified pursuant to Rule 26(b)(1) and (c)(1)(D) so as to limit the applicable time frame for production to five years prior to the current date. Each party shall produce to the other those communications (internal or external) that relate to negotiations for the purchase or sale of any exotic/vintage automobile by the party, purchase or sales agreements of the party involving such automobiles, insurance declaration pages related to each of the affected automobiles sold or purchased within the relevant five years. The Plaintiff's duty of production is further limited to no more than up to 10 qualifying automobiles during the applicable five-year time period. The parties are further advised that the critical date for application of the five-year period is the date of sale or purchase of each qualifying automobile and that communications regarding a qualifying automobile that otherwise fall outside the five-year period remain discoverable. (DN 46, Order). Nowhere in the above Order did the Court set forth an explicit deadline of its own making for compliance. Instead, the Court, in an effort to provide both parties ample time to gather and produce the requested documents, implicitly relied on the well-established 30-day provision of Rule 34(b)(2)(A) as the benchmark. After Plaintiff Cogan Imports, Inc. (Cogan) produced its documents on March 14, 2018, day 29 of the 30 day time period, counsel for Sunil Dharod advised Cogan's attorneys the following day on March 15 that their client Dharod would be providing them with the subject documents the next day after which the documents would be identified with Bates stamp numbers. Consequently, Dharod's own document production would not be available until early the following week. When Cogan had not received the documents from Dharod by mid-day on Wednesday, March 21 it electronically filed its current motion to impose sanctions pursuant to Rule 37(b)(2) for Dharod's alleged violation of the Court's order of February 13. (DN 49). Almost immediately thereafter, within 30 minutes of Cogan electronically filing its sanctions motion, Dharod's attorneys hand delivered 84-pages of documents Bates stamped SD 0393 - SD 0477. *2 After Cogan's counsel reviewed these documents, it filed a supplement in support of its motion for sanctions (DN 50). In its supplement, Cogan argued that Dharod had failed to comply with the February 13 Order, not only by his untimely production, but also by: (1) asserting new boilerplate objections that were not previously raised during the telephonic conference with the Magistrate Judge; (2) failing to include in his production any documents such as certificates of title that would confirm the ownership of any of the vehicles mentioned in documents produced; (3) including incomplete documents without signature pages (SD 0393-0394); (4) failing to include any negotiation-related documents involving Dharod's purchase of a 2014 yellow Ferrari 458 Spider and the trade-in of another one of his Ferraris referenced in SD 0394; (5) failing to produce various attachments directly referenced in the emails that were produced, such as a Special Order Fee document that required Dharod's signature (SD 0390), an options list for a Ferrari 458 Spider forwarded to Dharod (SD 0401-0402), a price list related to the purchase of a particular Ferrari Spider (SD 0405), a consignment agreement or draft consignment agreement with the Boardwalk Ferrari dealership referenced in SD 0416-0417; (6) including only 4 of 5 pages of an email chain between Boardwalk Ferrari and Dharod regarding the purchase of a 2014 Ferrari Spider (SD 0423-0426) while failing to include Dharod's response to a direct request for information about his intention to buy the subject Ferrari Spider outright or with trade-in (SD 0423); and (7) failing to include any purchase or insurance documents for a Mercedes S 550 that documents produced show Dharod negotiated to purchase between April of 2014 and April 2015 (SD 0433-0439). Cogan insists that the above examples, which are not comprehensive, underscore its view that Dharod has failed to comply with the February 13 Order of the Court by his untimely production, by the assertion of meritless boilerplate objections and by the multiple, material omissions from his eventual document production. Cogan accordingly asks the Court to preclude Dharod from offering into evidence any testimony or documents that relate or refer to “the practices and procedures ... for the negotiation, purchase or sale of any exotic/vintage automobile with the industry in general” or any evidence regarding Dharod's own practices and procedures regarding the negotiation, purchase or sale of any exotic/vintage automobile. Dharod has filed a Response in opposition to the motion for sanctions (DN 51). In his response, Dharod insists that he did not violate the February 13 Order of the Court, which included no explicit deadline for compliance. He argues that the relief requested pursuant to Rule 37(b)(2)(A) is clearly excessive where the delay in production was not willful, was a mere seven days at most and was not shown to result in any unfair prejudice to Cogan. See, World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012). See also, Gilbert v. Norton Healthcare, Inc., 2012 WL 6020353, *5 (W.D. Ky. 2012). Finally, Defendant maintains that the motion for sanctions should be denied, if for no other reason, based on the undeniable failure of Cogan to include a Rule 37(a)(1) or LR 37.1 certification to confirm that counsel informally conferred and were unable to resolve their differences prior to the filing of the motion. Cogan has filed a reply which addresses each of these arguments (DN 65). I. We begin with the final argument of the Defendant. It certainly is true that a certification of a good faith effort to confer is required by the provisions of Rule 37(a)(1) when a party files a motion to compel disclosure or discovery. See Bonds v. University of Cincinnati Medical Center, No. 1:15-cv-00641, 2016 WL 4702445 at *2 (S.D. Ohio Sept. 7, 2016)(citing Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-cv-116, 2010 WL 1445171, at *2 (S.D. Ohio Apr. 12, 2010)(“The obligation of counsel to meet and confer to resolve differences as to discovery disputes is a requirement of the Federal Rules of Civil Procedure as well as the Local Rules of this Court.”). The same requirement, however, simply does not apply when a party files a motion for sanctions for failing to comply with an order of the Court, a motion which is governed by Rule 37(b)(2)(A) rather than Rule 37(a)(1). Snap-On Business Solutions, Inc. v. Hyundai Motor America, 2011 WL 9825879 at*19 (N.D. Ohio June 8, 2011)(“First, Rule 37(a)(1) of the Federal Rules of Civil Procedure applies when a party files a motion to compel; motions for sanctions for failing to comply with a Court Order are governed by Rule 37(b)(2)(A), which does not have a meet-and-confer requirement.”). As a result, Cogan's indisputable failure to satisfy the inapplicable meet and confer certification requirement is unpersuasive as no requirement existed given the circumstances of the motion for sanctions.[1] *3 We turn next to the Defendant's argument that its production could not be untimely where the Order of the Court contained no explicit deadline. It is true the Order does not include a stated date on which the documents at issue must be produced. The absence of an explicit deadline, however, is hardly a persuasive basis on which to claim that no deadline applies. The fundamental language of Rule 34 imposes a 30-day deadline for the production of documents in all circumstances absent stipulation of the parties or a contrary order of the Court. See Fed. R. Civ. P. 34(b)(2)(A). Young v. Leon, 2015 WL 3476822 at *2 (D. Conn. June 2, 2015)(“ Unless a shorter or longer time is stipulated to under Rule 29 or ordered by the Court, “[t]he party to whom the request is directed must respond in writing within 30 days after being served.”)(citing Rule 34(b)(2)(A)). It was this is 30-day time period that the Court intended to control. Review of the communications between counsel prior to the filing of the current motion for sanctions confirms that even Dharod's own counsel appears to have operated on this assumption at least in his communications with opposing counsel, if not now. Consequently, Dharod's production was untimely as he did not produce the required documents until nearly a week after the deadline extablished by the Rule had expired. Whether this untimely production alone warrants the imposition of the requested Rule 37(b)(2)(A) sanctions is another, more complex matter. That question is extremely difficult for us to answer in the present circumstances. We have no means of knowing whether the delay, albeit brief, was willful, which is one of the factors in determining whether to grant such a motion. The question of unfair prejudice also is unresolved, given that we cannot now determine whether Defendant produced in good faith all of the responsive documents available to it, or whether it is currently withholding any otherwise discoverable documents based on its belated blanket claims of (1) attorney-client privilege, (2) work product doctrine, (3) confidentiality, (4) “rule of evidence,” (5) information not within the Defendant's possession, custody or control, and (6) vagueness, overbreadth, undue burden and oppression. Frankly, the Court did not expect to see such boilerplate objections at this late date. At no time during the telephonic conference on February 13, 2018 did counsel for Dharod give any indication to us that Dharod potentially would be withholding documents based on the attorney-client privilege, the work product doctrine, confidentiality or some currently unidentified “rule of evidence.” The only matters argued during the conference with respect to production of documents were the relevancy of the requested documents and the burden of producing them. Indeed, even Dharod in reciting the history of the present dispute in his Response indicates that “Because the requests [of the Plaintiff] were overbroad, Dharod timely objected to the requests on grounds of relevancy and scope.” (DN 51, p. 2) (emphasis supplied). That being so, the Court concludes that Dharod has waived any other objections by failing to timely put them before the Court during the telephonic discovery conference. See, Safeco Insurance Co. of America v. Rawstrom, 183 F.R.D. 668, 670–72 (C.D. Cal. 1998) (absent a showing of good cause, objections to discovery requests waived where they were interposed for the first time in a supplemental response served after the expiration of the period of time allowed for a response). We therefor conclude that the Defendant may not now withhold any otherwise relevant documents based on such untimely, boilerplate objections. See, Janko Enterprises, Inc. v. Long John Silver's, Inc., 2013 WL 5308802, *7 (W.D.Ky. 2013); Business Payment Systems, LLC v. National Processing Company, 2015 WL 13548456, *3 (W.D.Ky. 2015). *4 Until we know, however, which particular documents, if any, are being withheld for what specific reason, we cannot fully and fairly resolve the present dispute. If for example it turns out that numerous, otherwise discoverable, documents are being improperly withheld by Dharod based only on untimely objections, such a circumstance might weigh heavily in the ultimate outcome of the matter. We accordingly conclude that the present motion for sanctions will be DENIED WITHOUT PREJUDICE while the parties refine the nature of this dispute. Specifically, IT IS HEREBY ORDERED that: 1. Cogan shall submit to Dharod within five days of the date of entry of the present order a comprehensive list of each document, or category of documents, that Plaintiff now maintains are being improperly withheld, or otherwise unproduced, in violation of the February 13 Order of the Court; 2. Dharod shall thereafter within five days of the receipt of such list of documents, or categories of documents, specifically respond to Cogan on a document-by-document basis to advise Cogan whether: (1) the document at issue currently exists or does not exist; (2) the document if it exists is in the possession, custody or control of the Defendant; if not, then Defendant shall advise Cogan to the best of his ability the location of the unproduced document and the entity that has possession, custody or control of it; and (3) the document if in the possession, custody or control of the Defendant is currently being withheld based upon one or more of the objections discussed above. 3. Cogan upon the receipt of Dharod's response shall have five days thereafter in which to informally confer with counsel for Dharod in an effort to facilitate the production of any existent, unproduced documents that Cogan maintains are subject to production under the Order. 4. If the parties are unable through this process to satisfactorily resolve their differences regarding any unproduced documents subject to the February 13 order, Cogan may renew its motion for Rule 37(b)(2)(A) sanctions within 20 days following the conclusion of the meet and confer time period.[2] Cc: Counsel of Record. Footnotes [1] One might reasonably wonder what such an informal meeting of counsel in the context of Rule 37(b)(2)(A) would accomplish other than a predictably fruitless “Did so!/Did not!” debate over whether the Order at issue was or was not actually violated by the accused party. [2] The parties should not misread enumerated paragraphs 3 and 4 above as being an attempt to engraft the certification requirement of Rule 37(a)(1) onto Rule 37(b)(2)(A). Rather, the Court views this procedure as merely the most pragmatic, expeditious means to accurately resolve the question of potential sanctions by defining the full extent of the possible noncompliance with the February 13 Order. If this process causes either party to reconsider its position with respect to the current motion then so much the better.